Monday, April 12, 2010

Why and how Ukraine’s democracy is declining

Yanukovych’s revenge: 

KyivPost | Andreas Umland

Largely unnoticed in the West, Ukraine’s new president, Viktor Yanukovych, brought to power an illegitimate government in March. Though being installed via a seemingly orderly parliamentary procedure, the current Ukrainian cabinet headed by Prime Minister Mykola Azarov has no proper popular mandate. How did that come about?

Ukraine has a proportional electoral system with closed lists. This means that voters do not elect individual candidates, but can only approve of pre-determined lists presented to them by various political parties or blocs. The members of the Ukrainian parliament, the Verkhovna Rada, become deputies only in so far as they are included in their bloc’s or party’s lists the composition of which is beyond the reach of voters. The electoral success and resulting faction size of parties or blocs in parliament is thus mainly determined by the attractiveness of their ideologies, and charisma of their speakers.

Individual party list members play little role in Ukrainian parliamentary elections, which are contests between large political camps and their more or less magnetic leaders. This is in contrast to majoritarian or mixed electoral systems where the local standing of regional – and not only national – political leaders plays a prominent role in determining the makeup of the national legislature.

For better or worse, Ukraine has abandoned first its early post-Soviet majoritarian and later its mixed electoral systems. It now conducts (except for a 3 percent barrier) purely proportional parliamentary elections in which individual list members, other than a small circle of nationally known party leaders, play little role during the electoral campaigns. Accordingly, Ukraine’s Constitution ascribes to parliament’s factions, and not to members of parliament, a decisive role in the formation of a governmental coalition. A government has to be based on the support of registered parliamentary groups, and cannot be voted into office by individual MPs.

True, such a rule gives excessive power to faction leaders and belittles the role of the deputy as a people’s representative. Yet, the factions’ exclusive role in government coalition formation is consistent with, and follows from, the electoral system.

In so far as voters are not given a chance to express their opinion on individual candidates, the elected deputies have to act first and foremost as faction members. Within proportional electoral systems, it is not them as individuals, but their factions as fixed political collectives recruited from prearranged lists that represent the voters will, in legislature.

In spite of these circumstances, Yanukovych, on March 11, pushed through a government that is based only partly on party-factional support. The three factions that form the current coalition do, by themselves, not have a majority, in the Verkhovna Rada. Yanukovych’s Party of Regions, Ukraine’s Communist Party, and Parliamentary Speaker Volodymyr Lytvyn’s Bloc comprise only 219 of the 450 deputies. Yanukovych’s Party (thought that it has) solved this problem by luring away a number of deputies from its Orange competitors - the Bloc of Yulia Tymoshenko and pro-[Viktor] Yushchenko alliance “Our Ukraine – People’s Self-Defense” - in order to form a government coalition.

This happened in spite of the fact that these two factions represent exactly those political forces which, during the last parliamentary of 2007, stood in open opposition to Yankovych’s Party of Regions. When voters decided to cast their votes for the Tymoshenko Bloc and “Our Ukraine – People’s Self-Defense,” in 2007, they were clearly also voting against Yanukovych’s Party of Regions.

Nevertheless, on March 11, 12 deputies who had become MPs on the tickets of the two Orange blocs signed the coalition agreement that laid the ground for subsequent transfer of almost all executive prerogatives to the Party of Regions. The formerly Orange deputies did so against the expressive will of their initial factions and in manifest disregard of their voters’ mandate.

Party transfers during legislative period, to be sure, are not unusual, in young democracies. They occasionally even happen in consolidated democracies, like the Federal Republic of Germany which has also a proportional electoral system (a partly personalized ne though).

However, in mature democracies, such political transgressions usually concern only isolated MPs who choose to pass from one to another faction, for personal reasons. Therefore, the German basic law, for instance, upholds the MP’s unrestricted “freedom of the mandate,” in spite of the fact that half of the members of the Bundestag are not elected directly, but collectively, on their respective parties’ tickets – much like in Ukraine. The idea that a relatively large group of MPs could be purposefully drawn from one to another party in order to effectively cancel election results is so absurd that it has received little attention from constitutional engineers, and political comparativists, in Western states. Should such consequential change in the political allegiance of numerous deputies happen, the violation of the voters’ will would be so flagrant that it appears a waste of time to seriously consider such a strange and hypothetical case.

In unconsolidated pluralistic states, such things, however, do happen. Moreover, as the pre-history of the Orange Revolution showed, Yanukovych and Company are no democrats. Their poorly disguised falsification of the first two rounds of the 2004 presidential elections, as well as numerous related actions, demonstrated the Party of Regions’ ambivalent relationship to democratic norms. Moreover, Ukraine is not yet a consolidated democracy with a deeply ingrained rule of law. It is a state still in the process of formation, and one of the countries that has, worldwide, suffered most from the financial crisis. Judicial review has started to function in post-Soviet Ukraine, as the Constitutional Court’s intervention during the Orange Revolution showed. Yet, the results of the Constitutional Court’s today review on the new Ukrainian government coalition will hardly solve the current conflict between the political camps, as it did in 2004.

Its latest ruling is a rather strange development in so far as the Constitutional Court did already rule on the issue of whether individual MPs may participate in government coalition building. In its decision of 17 September 2008, the Court ruled that “[…] only those people’s deputies of Ukraine who are members of the deputies factions that form a coalition can enter the ranks of that coalition. The membership of the people’s deputies of Ukraine in these factions underlines the exceptional role of deputies factions in the formation of a coalition of deputies factions.”

In view of this ruling, the current government would appear as not only illegitimate from a democratic point of view, but also as illegal from a juridical standpoint. However, the new ruling renounces the quoted earlier one. It, moreover, puts under question all previous rulings by the Constitutional Court which, presumably, also could be revoked by the Court after a second hearing.

What also follows is an unsettling of the party-electoral system of Ukraine. If elections continue to be held in a purely proportional mode, voters will become unsure what their votes actually imply and will eventually lead to. As voters can only approve of closed party lists, they have no opportunity to punish individual deputies who have renounced the mandate they had received during the previous elections, i.e. who have, in fact, betrayed their voters. Worse, voters of those parties or blocs that suffer most from enticement of their deputies by competing parliamentary factions will ask themselves why they are voting at all. If the deputies whom they delegate to parliament may later be poached by the opposing camp, and switch political sides, it makes little sense to send them to the Verkhovna Rada, in the first place. Today’s renunciation of the Constitutional Court’s decision of September 2008 makes Yanukovych’s Party of Regions a “double-winner”: it can keep its hold on the executive with the help of deserters from other factions while at the same time undermining the electoral base of its political competitors. Democratic elections’ primary function of constituting a transparent link and effective feedback mechanism between the population and government has been diminished.

Ukraine’s decision makers have to understand that only semi-formal observance of democratic rules and merely rhetorical acceptance of political pluralism will be insufficient to keep the country on track to eventual European Union membership – an aim to which all relevant political actors seem committed. Oral agreement to certain actions even by official Western delegations will not be enough to ensure sustainability in Ukraine’s move towards Europe, for the next years.

It is possible that the government formation of March 11 will lead to a downgrading of Ukraine in future democracy rankings, like those of Freedom House. Should Ukraine, for instance, be relegated by Freedom House from “free” to “partly free,” this could have grave political repercussions for Ukraine. The Western public would again start to see Ukraine as a country “in between” democracy and authoritarianism, and not as a state firmly committed to European values. Ukraine would slide into the category of countries like Moldova, Georgia or Armenia – semi-democracies that the EU hopes to include some day, but regards today far from ripe to be offered a membership perspective. It is not some selected ambassadors or EU officials, but the people of Europe – including the Ukrainians themselves! – who the new political leadership of Ukraine will have to convince of its commitment to democracy and the rule of law.

Andreas Umland, is general editor of the scholarly book series “Soviet and Post-Soviet Politics and Society” (